Gujarat High Court
Wind World India Ltd vs Shree Tebhada Gram Panchayat, Sarpanch on 2 January, 2023
Author: Nirzar S. Desai
Bench: Nirzar S. Desai
C/SCA/22350/2022 ORDER DATED: 02/01/2023
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 22350 of 2022
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WIND WORLD INDIA LTD.
Versus
SHREE TEBHADA GRAM PANCHAYAT, SARPANCH
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Appearance:
MR KUNAL VYAS ADVOCATE
GANDHI LAW ASSOCIATES(12275) for the Petitioner(s) No. 1,2
MR CHINTAN S POPAT(5004) for the Respondent(s) No. 1,2
MR HS MUNSHAW(495) for the Respondent(s) No. 3
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CORAM:HONOURABLE MR. JUSTICE NIRZAR S. DESAI
Date : 02/01/2023
ORAL ORDER
1.1 By way of this petition, the petitioner has challenged the order dated 27.10.2022 passed by Respondent Nos.1 and 2 i.e. Shree Tebhada Gram Panchayat whereby the Panchayat directed the petitioner company to remove encroachment done by the company on Gauchar land.
1.2 The aforesaid action is challenged by the petitioner by way of this petition.
2.1 Learned advocate Mr.Hriday Buch appearing with learned advocate Mr.Chintan Popat for Respondent Page 1 of 5 Downloaded on : Tue Jan 03 20:52:19 IST 2023 C/SCA/22350/2022 ORDER DATED: 02/01/2023 Nos.1 and 2 - Panchayat draws attention of this Court that, in earlier round of litigation, while allowing the petition being Special Civil Application No.11976 of 2019 preferred by the petitioner, vide order dated 23.09.2022, the coordinate Bench of this Court in para:11 observed as under:
"11. On perusal of the material placed on record, it clearly transpires that the Panchayat has issued notice to the petitioners herein and the petitioners has replied to it and also sought for personal hearing. However, it appears that the impugned notice is lacking in respect of granting opportunity of personal hearing. Thus, requirement of personal hearing as envisaged under Rule 55 of the Panchayat (Procedure) Rules, 1997 is not fulfilled in this matter. Under these circumstances, the grievance raised by the petitioners that no proper opportunity of hearing was provided to it, is acceptable. Therefore, only on this ground, the petition deserves to be allowed. If any adverse order is passed after such hearing, the petitioners can always approach appropriate authority as envisaged under the Panchayats Act itself, which is alternative remedy available to it by way of appeal to District Panchayat as well as revision before the Government."
2.2 Learned advocate Mr.Buch states that the Page 2 of 5 Downloaded on : Tue Jan 03 20:52:19 IST 2023 C/SCA/22350/2022 ORDER DATED: 02/01/2023 coordinate Bench of this Court, while allowing the petition, categorically directed the petitioner that if any adverse order is passed after such hearing, the petitioner can approach the appropriate authority and avail alternative remedy and, therefore, in view of availability of alternative remedy this petition may not be entertained.
3.1 As against aforesaid preliminary objection, learned advocate Mr.Kunal Vays appearing for Gandhi Law Associates submits that while allowing the petition, the coordinate Bench specifically observed that the petitioner can avail alternative remedy only in case if the petitioner is heard. In the instant case, petitioner is not heard at all and, therefore, there is no question of availing the alternative remedy and hence the present petition is required to be entertained.
4. Learned advocate Mr.Buch disputes aforesaid statement and points out from the impugned order dated 27.10.2022, more particularly para:6 of the order, points out that after the notice was served upon the petitioner, the petitioner did not bother to remain Page 3 of 5 Downloaded on : Tue Jan 03 20:52:19 IST 2023 C/SCA/22350/2022 ORDER DATED: 02/01/2023 present and only gave reply to the Sarpanch and went away. He further submitted that since the aforesaid reply was considered by the authority and, therefore, once the reply is considered, it cannot be said by the company that sufficient opportunity of being heard was not given to the company and they were not given any opportunity of hearing.
5. However, even aforesaid stand taken by learned advocate Mr.Buch, which he pointed out from the reply is disputed by learned advocate Mr.Kunal Vyas appearing for the petitioner.
6. Considering the fact that whether the petitioner was heard or not is matter of disputed question of fact which can not be gone into by this Court in a writ petition under Article 226 of the Constitution of India. However, fact remains that there is an alternative remedy of filing statutory appeal under Section 242 of the Panchayat Act before the District Panchayat and, therefore, once there is a direction by the coordinate Bench while allowing petition being Special Civil Application No.11976 of 2019 vide order dated Page 4 of 5 Downloaded on : Tue Jan 03 20:52:19 IST 2023 C/SCA/22350/2022 ORDER DATED: 02/01/2023 23.09.2022 directing the petitioner to avail alternative remedy, present petition is not entertained. The petitioner may avail alternative remedy if they so desire.
7. In view of above, the present petition is dismissed. Notice is discharged. Interim relief shall stand vacated.
8. It is clarified that this Court has not gone into merits of the matter. This petition is dismissed only on the ground of availability of alternative remedy which is not availed by the petitioner, without entering into merits of the matter.
(NIRZAR S. DESAI,J) MISHRA AMIT V. Page 5 of 5 Downloaded on : Tue Jan 03 20:52:19 IST 2023